Sharafudeen v. Registrar, University of Kerala — 1996 DIGILAW 534 (KER)

Judgment :- Sankarasubban, J. The petitioner in O.P. No. 11156 of 1996 is the appellant. The Registrar, University of Kerala, issued Ext. P1 notification dt. 26.5.1994 inviting applications for various teaching posts in the University. One of the posts advised is the post of Lecturer in Islamic Studies in the teaching department of University of Kerala. The qualifications were prescribed in the notification. The petitioner had the required qualification and he applied for the post. He was called for interview on 9.7.1996. In the interview he found that the selection committee was headed by the 3rd respondent - Pro-Vice Chancellor instead of the second respondent - Vice Chancellor. The selection committee submitted its recommendation to Syndicate. Before the Syndicate took a decision, the petitioner filed the original petition challenging the constitution of the selection committee. 2. According to the petitioner, the selection committee' has to be constituted as per Statute 4 of Chapter 3 of the Kerala University First Statutes, 1977. Under this statute, the Vice Chancellor is the ex-officio Chairman of the selection committee. The committee is to consist of one Syndicate member to be nominated by the Vice Chancellor, two outside experts chosen by the Syndicate and also the Head of the concerned Department or the teacher holding charge of the same. Instead of the Vice Chancellor chairing the selection committee, the 3rd respondent, who is the Pro-vice Chancellor had chaired the committee. The petitioner contended that the Vice Chancellor cannot delegate his authority to the Pro-Vice Chancellor. Further, he challenged the selection on the ground that the third respondent was biased in favour of one of the candidates, who got subsequently impleaded himself as the additional 4th respondent. The prayer in the original petition was to issue a writ of mandamus declaring that the select list prepared for appointment to the post of Lecturer in Islamic History by a Selection Committee with the 3rd respondent as the Chairman is illegal and invalid and for other reliefs. 3. On behalf of the University, the Registrar filed a counter affidavit. In the counter affidavit, it is stated that 13 candidates submitted applications. Out of this, the screening committee decided to accept only six applications. The Vice Chancellor of the Kerala University was also acting as the Vice Chancellor of the Sree Sankara Sanskrit University at Kalady. 3. On behalf of the University, the Registrar filed a counter affidavit. In the counter affidavit, it is stated that 13 candidates submitted applications. Out of this, the screening committee decided to accept only six applications. The Vice Chancellor of the Kerala University was also acting as the Vice Chancellor of the Sree Sankara Sanskrit University at Kalady. There was a syndicate Meeting of the Sree Sankara Sanskrit University on 9.7.1996 and hence, the Vice Chancellor directed the Pro-Vice Chancellor to chair the selection committee. The University has also produced Ext. R1 (a) letter addressed to the Secretary to Governor, Raj Bhavan, Trivandrum. Ext. R1 (a) is undated. In Ext. R1 (a) what is stated is this: "As I have to be away from Headquarters in connection with the urgent meeting of the Syndicate of the Sree Sankaracharya University of Sanskrit, Kalady, I request you to make necessary arrangements to put Prof.. M. Salihu (3rd respondent), the Pro-Vice Chancellor as Chairman of the Selection Committees constituted for selection of Reader in the Department of Physics (Reservation - Muslim quata) on 8th July and for the post of Lecturer in Islamic Studies on 9th July, 1996. I request that the matter may please be placed before His Excellency, the Chancellor or orders communicated in this regard at the earliest." According to the counter affidavit, this is justified as the Vice-Chancellor can delegate his powers. The allegation of bias is denied. It is stated that the 3rd and 4th respondents worked in two different colleges though under the same management. The 3rd respondent left the TKM College of Engineering in August 1983 whereas the 4th . respondent joined the TKM Arts and Science College in October 1983. It was further stated that the minutes of the selection committee were placed before the Syndicate on 19.7.1996, but because of the stay granted by this Court, no decision was taken by the Syndicate. The additional 4th respondent has also filed a counter affidavit. He has specifically denied the allegation that the third respondent is biased in his favour. 4. The learned single judge dismissed the original petition. In Paragraph 5 01 u .,-judgment, it is stated that though Ext. The additional 4th respondent has also filed a counter affidavit. He has specifically denied the allegation that the third respondent is biased in his favour. 4. The learned single judge dismissed the original petition. In Paragraph 5 01 u .,-judgment, it is stated that though Ext. R1 (a) is undated, since the bonafides of the document were not disputed, it can be presumed that it is as per the direction of the Chancellor that the Pro-Vice Chancellor acted as the Chairman of the Selection Committee. Before the learned judge, the University relied on Ss.10(18) and 11(6) of the Kerala University Act. Regarding the allegations of bias, the learned judge found that the allegations are not proved. It is against the above judgment that the writ appeal is filed. 5. Sri. C.P. Sudhakara Prasad, learned counsel appearing for the appellant, submitted that the committee for selection of teachers is constituted by the Statutes and the Vice Chancellor is the Chairman by virtue of his office. The Vice Chancellor cannot further delegate that power. S.10(18) of the University Act comes into play only when the Vice Chancellor is temporarily absent. The University has no contention that such a contingency has occurred. Regarding the power of delegation, learned counsel submitted that Statute 6 of Chapter 2 of the University First Statutes empowers the Vice Chancellor to delegate any of his administrative powers and functions other than the powers which are to be exercised by the Vice Chancellor himself under the laws of the University. Learned counsel also attacked the finding of the learned single judge, regarding bias. 6. Sri. S. Gopakumaran Nair, learned counsel for the University, submitted that the Vice Chancellor could not take part in the selection because he had urgently to leave the station to attend the Syndicate meeting of the Sree Sankaracharya University of Sanskrit, Kalady. According to the counsel, the Chancellor has got the power to delegate the authority to the Pro-Vice Chancellor. Further, he submitted that Ext. R1 (a) letter was sent for approval of the Chancellor. Learned Counsel also denied the allegation of bias on the part of the 3rd respondent in favour of the 4th respondent. Sri. K.R.B. Kaimal, learned counsel for the 4th respondent supported the arguments of the learned counsel for the University and submitted that it is only because of the petitioner was not selected he has come to this Court. 7. Learned Counsel also denied the allegation of bias on the part of the 3rd respondent in favour of the 4th respondent. Sri. K.R.B. Kaimal, learned counsel for the 4th respondent supported the arguments of the learned counsel for the University and submitted that it is only because of the petitioner was not selected he has come to this Court. 7. Before going into the contention regarding the competence of the Pro-Vice Chancellor, we shall consider the allegations of bias against the third respondent. The only allegation raised in the original petition is that the third respondent is interested in the 4th respondent, because both of them have worked as teachers under the same management. In the counter affidavit filed by the University, it has been clearly stated that they did not work in the same college but they were working in different colleges. Nothing has been brought out in the original petition to show that the third respondent was actually interested in the 4th respondent. In the above view of the matter, we agree with the learned single judge that there was no bias on the part of the third respondent in favour of the 4th respondent. 8. The main contention raised in the writ appeal is regarding the competence of the third respondent to chair the selection committee. S.23 of the Kerala University Act deals with the powers of the Syndicate. Clause (viii) of the above section gives the Syndicate the power to appoint teachers and other employees of the University and prescribe their duties. In clause (xix), it is stated that the Syndicate can delegate any of its powers to the Vice Chancellor or to the committee appointed from among its members. S.34 of the Act deals with the framing of statutes for all matters, which, by the Act, are to be done or prescribed by a Statute. Chapter 3 of the Kerala University First Statutes deals with teachers of the University. Statute 3 of Chapter 3 says that teachers of the University shall be appointed by the Syndicate. Statute 4 deals with the selection committee for appointment of teachers. There it is stated that a screening committee will screen the applications and only the applications which are found in order by the committee will be referred to a selection committee. Statute 3 of Chapter 3 says that teachers of the University shall be appointed by the Syndicate. Statute 4 deals with the selection committee for appointment of teachers. There it is stated that a screening committee will screen the applications and only the applications which are found in order by the committee will be referred to a selection committee. It further states that for the posts of Professor and for the posts of Reader, Lecturer etc., the Vice-Chancellor shall be the ex-officio Chairman of the Selection Committee. For the post of Lecturer, in addition to the Chairman, one Syndicate member nominated by the Vice Chancellor, two outside experts chosen by the Syndicate and the Head of the concerned University Department are to be the members. 9. The question for consideration is whether the Vice Chancellor can delegate his power. Statute 4 clearly says that "The Vice Chancellor who shall be ex-officio Chairman of the Selection Committee". Learned counsel for the University tried to justify the action of the Vice Chancellor on the basis of S.10(18) of the Kerala University Act. S.10(18) reads as follows: "In the event of a temporary vacancy occurring in the office of the Vice-Chancellor, or where the Vice-Chancellor is temporarily absent, the Chancellor shall make necessary arrangements for exercising the powers and performing the duties of the Vice-Chancellor." This contemplates a case where there is a temporary vacancy or where the Vice-Chancellor is temporarily absent. In such a case, the Chancellor has to make arrangements for exercising the powers and performing the duties of the Vice-Chancellor. There is no case for the University that the Pro-Vice Chancellor was authorised by the Chancellor to perform the duties and powers of the Vice-Chancellor. Ext. R1 (a) only says that the Pro-Vice-Chancellor is to be put as Chairman of the selection committee. There is no request for performing the duties of the Vice-Chancellor during his absence. Obviously, S.10(18) refers to a contingency that when the Vice-Chancellor is absent, the entire functions and duties of the Vice-Chancellor are to be performed by another person. Hence, according to us, S.10(18) of the University Act does not come into the picture. 10. The next argument of the learned counsel for the University is that statute 6 of Chapter 2 of the Kerala University First Statutes empowers the Vice Chancellor to delegate. Hence, according to us, S.10(18) of the University Act does not come into the picture. 10. The next argument of the learned counsel for the University is that statute 6 of Chapter 2 of the Kerala University First Statutes empowers the Vice Chancellor to delegate. Statute 6 reads as follows: "The Vice-Chancellor may delegate any of his administrative powers and functions other than the powers which are to he exercised by the Vice-Chancellor himself under the laws of the University. The delegation of such powers shall be reported to the Syndicate at its next meeting". Chapter 2 of the Statute deals with the powers and duties of the Vice-Chancellor. Statue 5 of Chapter 2 deals with the academic and administrative powers. If we read the provisions of the entire Chapter 2, it can only mean that the administrative powers conferred on the Vice-Chancellor can be delegated. But, the powers which are to be exercised by the Vice-Chancellor himself under the laws of the University have to be performed by him alone and nonelse. Therefore, the question is whether the power conferred on the Vice-Chancellor to act as the Chairman of the Selection committee under Statute 4 of Chapter 3 can he delegated. 11. As already stated, the power to appoint teachers is vested with the Syndicate under S.23 of the Kerala University Act. The procedure for appointment is fixed under Statute 4 of Chapter 3 of the University First Statutes. By this, a selection committee is constituted and the Vice Chancellor is made the ex-officio Chairman of the Selection committee. The statute has fixed the Vice Chancellor to be the Chairman with the intention that the selection committee will be prescribed by an eminent person like the Vice-Chancellor. The duty is cast on the Vice-Chancellor taking into account his position. Further, the statutes itself says that the Vice-Chancellor has to nominate two members for the selection committee. This power to select has been delegated by the Syndicate to a committee consisting of the Vice Chancellor. The Vice-Chancellor cannot further delegate his function by directing another person to discharge the functions as the Chairman of the selection committee. The statute has intended that this power should be exercised only by the Vice-Chancellor. This power to select has been delegated by the Syndicate to a committee consisting of the Vice Chancellor. The Vice-Chancellor cannot further delegate his function by directing another person to discharge the functions as the Chairman of the selection committee. The statute has intended that this power should be exercised only by the Vice-Chancellor. Of course, if the Vice-Chancellor is temporarily absent or that post is vacant and another person is appointed to discharge that function, that person may be competent to act as the Chairman by virtue of the fact that he has been authorised to discharge the functions of the Vice-Chancellor. There he is competent to head the selection committee because he is discharging the junctions of the Vice-Chancellor. When the statute prescribes that a particular thing should be done in a particular manner, it can be done only in that manner. 12. Craies on Statute Law, 6th Edn., Page 263 states as follows: "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend them will invalidate the whole In this context, it is worthwhile to extract the following passages from Administrative Law by Sir William Wade (7 th Edn.) at P. 347. "An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally, the Courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however, expressly authorised by the authority endowed with the power". In Allingham v. Minister of Agriculture and Fisheries (1948(1) All. E.R.780) the question arose as to whether a committee to which the power to decide a dispute under Reg. 66 of the Defence (General) Regulation, 1939, was delegated, could entrust that power to anybody else. In Allingham v. Minister of Agriculture and Fisheries (1948(1) All. E.R.780) the question arose as to whether a committee to which the power to decide a dispute under Reg. 66 of the Defence (General) Regulation, 1939, was delegated, could entrust that power to anybody else. There the committee left to its executive officer the selection of the field, which was required by the regulation to be specified in the notice to the occupier. The officer consulted a local sub-committee appointed to make recommendations to the committee, and served a notice on the occupiers specifying the field to be so cultivated. Based on the maxim delegates non potest delegate, it was held that the committee could not delegate the power to determine the land to be cultivated to its officer, and therefore, the notice was ineffective and non-compliance with it was not an offence. 13. In A.K. Roy v. State of Punjab (1986) 4 SCC 326, a similar question arose. The power to initiate prosecution for offence under the Prevention of Food Adulteration Act, 1954 conferred by S.20(1) was delegated by the State Government to Food (Health) Authority under R.3 of the Prevention of Food Adulteration Rules, 1958. In that case, the Supreme Court held as follows: "Where a power is given to do a certain thing in a certain way, the tiling must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the legislature in enacting S.20(1) was to confer a power on the au thorities specified therein which power had to be exercised in the manner provided and not otherwise. The use of the negative words in S.20(1) plainly makes the requirements of the section imperative. The provision does not envisage further delegation of powers by the person authorised, except that such prosecution may be instituted with the written contest of the Central Government or the State Government or the person authorised". In Barium Chemicals Ltd. v. Company Law Board (AIR 1967 SC 295), the Supreme Court observed thus: - "Bearing in mind that the maxim delegates non potest delegate sets out what is merely a rule of construction, sub delegation can be sustained if permitted by express provision or by necessary implication"., In Halshury's laws of England, 4th Edn. Vol. In Barium Chemicals Ltd. v. Company Law Board (AIR 1967 SC 295), the Supreme Court observed thus: - "Bearing in mind that the maxim delegates non potest delegate sets out what is merely a rule of construction, sub delegation can be sustained if permitted by express provision or by necessary implication"., In Halshury's laws of England, 4th Edn. Vol. 1, in respect of sub delegation of powers it has been said: "In accordance with the maxim delegates non potest delegate, a statutory power must be exercised only by the body or officer in whom it has been confided, (H. Lavender & Son Ltd. v. Minister of Housing and Local Government (1970) 3 All ER 871) unless sub delegation of the power is authorised by express words or necessary implication (Customs and Excise Cotnmrs. v. Cure and Deeley Ltd. (19613 All ER 641) an & mungoni v. Attorney General of Northern Rhodesia (1960) 1 All ER 446. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. Allatn & Co. v. Europe Poster Services Ltd. (1968) 1 All ER 826. 14. Thus, reading Statute 4, the power to select Lecturers has to be done by a committee, which has to be chaired by the Vice-Chancellor. Hence, the selection has to be conducted as per the statute. In the above view of the matter, the Vice-Chancellor cannot further delegate the power. 15. The production of Ext. R1 (a) also does not justify the case of the University. Ext. R1 (a) is addressed to the Secretary to Governor, informing him that he is putting the third respondent to act as the Chairman. Nothing has been produced to show that the Chancellor has authorised the 3rd respondent to act as the Chairman, Thus, looking from any angle, the selection committee constituted for selection of candidates for appointment of Lecturers in Islamic History pursuant to Ext. P1 notification is invalid, Since it is not presided over by the Vice-Chancellor as required under Statute 4 of Chapter 3 of the Kerala University First Statutes. The selection made by the committee is invalid and we declare so. P1 notification is invalid, Since it is not presided over by the Vice-Chancellor as required under Statute 4 of Chapter 3 of the Kerala University First Statutes. The selection made by the committee is invalid and we declare so. The selection committee as envisaged under Statute 4 of Chapter 3 will conduct the selection of the candidates and submit its recommendation to the Syndicate. In the result, the judgment of the learned single judge is set aside. Writ Appeal is allowed.